Friday, November 13, 2020

The dead deserve no mercy

I am not a scholar, and for that I and I alone bear responsibility. But I have lived with scholars - continue to live with them, on and off - who have created, explained and generously shared knowledge in ways that I hold in the greatest awe. That they love me unreservedly is neither here nor there; they are, to my criminally untrained mind, the greatest thinkers I know, though they almost always correct me that if they are great, their greatness only comes about on account of their standing on the shoulders of true greats. I do not make these declarations lightly; after all, in this country alone, there are men and women who have thought through some of the most difficult questions of our times, detailing them in ways that have invited awe, surprise, anger and, on so many terrifying occasions, violence and murder.

It is why I can appreciate the nadir that current knowledge finds itself in Kenya for a thinker to declare that Kenyans are aggressively ignorant, none more so than those who are privileged to have received many opportunities to think but have chosen to publicly practice a certain kind of ignorance that wears the superficial garb of academic credentials but in truth reveals them to be intellectual cowards. I speak, of course, of men and women of letters who have betrayed a life of letters for the pottage of high government offices and ephemeral political quasi-power.

The Kenyan academy has been hollowed out, first by the murder of great thinkers, and second by their suppression through assimilation - or exile. Murder as the weapon of choice has gone out of vogue - though the murder of Dr Odhiambo Mwai continues to hurt seventeen years later. Exile as well isn't as popular in the age of social media and activist judicial officers. Assimilation, a tactic used to great effect by Mwai Kibaki, has worked wonders in styling independent thinking and tarring independent-thinking intellectuals with the same brush as the dyed-in-the-wool brown-nosing sell-outs. The depths to which the Kenyan academy has sunk continue to be revealed by the utterances of its new-ish members who deprecate the value of the arts and sing the pro-market praises of STEM disciplines - provided the STEM-ists stay well away from theoretical sciences and concentrate their minds on practical sciences.

There are a few holdouts in the crumbling academic redoubt - Dr Njoya at the Daystar University and Dr Ogada, the eminent carnivore ecologist, readily come to mind. But they are a rare and vanishingly small species of public intellectuals, shunned by their peers in the upper echelons of the public service and viewed with contempt if not scorn by the makers of things, like the senior-most wheelbarrow salesman of today and his acolytes.

In Kenya, it is no longer a fertile soil for new ideas - or old ideas reexamined anew. In Kenya, to reach the highest parapets of the academy, one must suppress the instinct to challenge received wisdom. One is expected to conform. One must go along, even if one doesn't get along. In Kenya, to think is to invite trouble. To think fiercely is to invite violence. To think radically is the nearest one will come to drinking petrol and pissing in a camp fire. It is how medical professionals who have reached the highest levels of governmental power and authority are not mentoring their junior to scale ever greater medical heights but have become the pre-eminent inspectors of classrooms. The special form of a professor of medicine inspecting Grade Three classrooms to see if they are fit for teaching during a pandemic is one of the most devastatingly dispiriting things in the world. But what is worse is a putting is man best known for selling mouldy cheese in charge of health policy. The academy, my dear friend, is dead. All that remains is the generations to come to perform its last rites and inter it together with honour, ethics and integrity.

When the history of this sad and cruel time is written, I pray that history's judgment is harsh. We must serve as a warning to future generations. They must point to us as the example of a promise betrayed. They must place our cowardice in the proper historical context and render, harshly, the judgment that for all our perceived "progress", we are no better than ornery buffalos. We deserve no mercy.

Monday, November 09, 2020

Only divorce will bring credibility

There are no perfect constitutions. That it is necessary to restate this truism comes as no surprise in Kenya's fractious constitutional debates. On a raft of issues, the Constitution, whether or not it is "implemented in full", faces challenges, some insurmountable and others not. It is therefore, perfectly in order for men and women invested in their own political survival to campaign to amend the Constitution and attempt to persuade the people that the amendments are for their own good. It is up to the people to be informed well enough to make a decision that they can live with.

If there are no perfect constitutions, then it also follows that there are no perfect constitutional orders and Kenya's is as imperfect as they come. There are those who would deny the long tail of colonialism on Kenya's constitutional order, but they are a minority that labour under the delusion that British colonialism was a net good for the peoples of Kenya. It is safe to treat them with suspicion for their constitutional motives are forever infested by hangovers over Britishisms of little constitutional value. On the other hand, it is a bit overwrought to lay all the blame for the current constitutional mess on the British; we have had two decades to settle on a constitutional order that guarantees and protects the rights of the individual; recognises the legitimate place of all genders in public affairs; holds the high and mighty accountable to the people; and forms the foundation for, as the USA declaration of independence says, the pursuit of life, liberty and happiness.

The Second Liberation inspired civil society to campaign on many constitutional reforms platforms. Many can recall the strong positions that the Law Society of Kenya, the National Council of Churches of Kenya and the Green Belt Movement, among others, took on many constitutional questions, quite often putting their members at grave risk of death or injury. The Ufungamano Initiative presaged many of the issues that would form the basis of the Bomas Conference and the work of the Ghai Commission and Nzamba Kitonga's Committee of Experts.

The Building Bridges to a United Kenya initiative - BBI - shares very little with previous constitutional reforms processes in Kenya. It isn't inspired by what the people want or need. It hasn't inspired civil society to participate in the process in ways that bring the people together on common platforms. Instead, it is the knee-jerk response of a political class that is totally divorced from the people and obsessed with the sharing of space at the feeding trough that is the National Treasury.

When we finally confirmed that the new constitutional order had not cured the political classes of their impunity - it still staggers me the number of sitting parliamentarians that were feeding at the NYS I and II troughs - we also conformed that the Ghai Commission was the last legitimate people-centred constitutional reform movement. The CoE wore the veneer of people-centrism but in truth it was a camouflage for the baser political instincts of men and women seeking high office and explains why the BBI is obsessed with the expansion of the national legislature and executive. The people will get a few crumbs thrown to them from the high table but in truth, seven-year moratoriums on HELB loans or whatever it is that forms the sops-for-the-people agenda don't mean much if taxpayers' monies go to satisfying the avarice of less than five hundred highly-paid, highly under-worked members of the political elite at the expense of the remaining fifty million Kenyans rather than regulating the national economy in a way that generates income-generating opportunities for the vast majority of young people of working age.

It isn't too late for the people to seize the moment. It will be difficult and much has changed since the halcyon days of Saba Saba. But civil society organisations like the Law Society still have an opportunity to define the arena in a people-centrered way. In my opinion, the first vital step the Law Society  - and civil society in general - can take is for its members to resign from every single public office reserved for them by Acts of Parliament or regulations made thereunder. It is impossible to criticise the eating culture in Government when you are eating as well, isn't it? The argument that direct civil society participation in public institutions is vital to holding them to account has proven to be wildly optimistic and it is time civil society and government went their separate ways. It is the only way that civil society can credibly hold the government and, by extension state and public officers, to account. If one of the BBI goals were to separate Government and civil society, I'd begin to pay attention to its plethora of self-serving proposals.

Friday, November 06, 2020

Hollow words

There are many pivotal moments in Kenya's road to corruption. The debasement of the public service did not begin the other day. We have taken many steps to get to the point we are, and along the way, we have revealed our true selves, whether we serve in Government, ply our trade in the private sector, or scold the firmaments of both as vocal members of the Third Sector. I like to think that corruption, both inside and outside Government, became acceptable when the president allocated to himself his first acre of land in the style of the kings of England and the Popes of the Holy Roman Catholic Church.

A few years ago, there was an apocryphal story of blue chip company's dealings in land in Ruaraka. There was no Government interest in the transactions - save for the taxes due. Yet there were rumours - as Kenyan rumours are won't - about "procurement irregularities" in the transaction that have simply refused to die down. The deal was eventually shelved and the company, instead, invested in land near Athi River and quietly proceeded with its housing project. It is one of dozens of stories about the degree of graft plaguing private-sector companies. These are stories we tend to ignore or pretend they didn't happen. All these stories can trace their roots to the betrayals visited upon Kenyans by their elected representatives, ministers of faith, corporate titans and leading university dons.

So it is a bit rich for the self-righteous among us to tom-tom their ethical and moral superiority, lay the blame for our Augean stables at the feet of the masses and their - and only their - elected representatives, and absolve the rest of the private sector from all responsibility. It is a simple argument: I am pure; the people I deal with are pure; therefore people like us couldn't possibly be corrupt; consequently it's your fault, Wanjiku, for electing thieves and robbers. As we discovered when senior members of the government procured a multi-billion shilling security system from a leading private-sector company, corruption requires two to tango, and members of the professional classes - lawyers, accountants and the like - to draw up the necessary papers and ratify the necessary agreements.

This morning there was a hilarious story about how bar-flies and bar owners were getting around the Covid curfew in Murang'a - an old but effective dodge. They'd simply lock themselves in the bar, turn down the lights, keep the noise down, and carry on: the bar owner turns a profit, the bar-fly can drink to his heart's content, and, presumably, Government is none the wiser. But in such a heavily police society like ours, only the naive believe that the forces of law and order are oblivious of the goings on in the dozens or Murang'a bars across the country that have actively conspired to convert themselves into Covid super-spreaders. If the police know, then their superiors know. If their superiors know, then their appointing authorities know. Everyone knows; everyone pretends not to know. And the self-righteous continue to live in their bubble.

The solution is straightforward. Because Wanjiku takes her cue from her community's leaders, from the president on down, then if we are to clean our Augean stables, enforcement must begin with the man - or woman - at the top. But so long as we give the high and mighty a free pass, and stay silent as they demonstrate the pecuniary value of bad behaviour, we have no moral authority to declaim pompously that the people are to blame for the shit they suffer on the daily. The stick isn't simply for the "hawkers" who flood the CBD or the makanga loudly touting for passengers on a blind corner. The hypocrisy of the opposite position is the reason why things are getting worse and why the un-human idea that money imbues one with probity keeps gaining credence.

Two members of my profession, seniors both, love visiting European cities that are clean, well-managed and devoid of the raucous chaos of Nairobi's streets. In their estimation, caucasian Europeans are better at municipal management than Black Kenyans and it shows in how clean European cities are and how filthy Kenyan towns are. The fallacy is obvious. Graft in high places in European cities is more often punished than not. In Kenya, the opposite is true - it is petty offenders aping their "leaders" that bear the brunt of anti-corruption law-enforcment while the high and mighty spend goodly portions of their ill-gotten gains paying senior members of my profession to keep their hides out of the Industrial Area Remand and Allocation Prison. Many of us would be willing to accept the claim that as professional advocates, we accept all manner of briefs because that is what the administration of justice demands. But because the bulk of graft is accomplished by legal eagles being the handmaids of the thieves in high places, the claim rings hollow.

Wednesday, November 04, 2020

PR isn't enough

Article 10 of the Constitution of Kenya rarely attracts attention save for when it is waved in State and public officers' faces with demands for "public participation" whenever Government engages in secretive public policy shenanigans. But Article 10 is much more than the "public participation" Article; it is the foundation for the safeguarding of our rights and fundamental freedoms enshrined in Chapter Four. Without Article 10, the State - especially the State - will run roughshod over us and make a mockery of Chapter Four. And where the State goes, so go the rest of the country.

One of the principles by which "all State organs, State officers and public officers" are bound, is the principle of good governance, integrity, transparency and accountability. It goes hand in hand with our right of access to information held by the State under Article 35, which contributes enormously to our sovereign right as citizens to hold State and public officers to account. In my humble opinion, the Nairobi Metropolitan Services, its Director-General and everyone connected to this demonseed, make a mockery of Article 10 and the principle of good governance, integrity, transparency and accountability.

I have had occasion to joust with the proponents of the militarisation of public services and, even accounting for their deep frustrations with the way Nairobi's governors have governed, I can find no persuasive reasons for why they would simply allow NMS to operate the way it does and fail to connect its perfidious approach to transparency and accountability as of a piece with the ineptitude and graft of Nairobi's City Fathers.

Don't get me wrong. I enjoy well-paved and well-lit city streets, efficient water and sanitation services, effective public health facilities, and predictable rule-enforcement in building and construction. But, even taking into account the shenanigans of Messrs Sonko and Kidero and their bands of misfits, we knew who was responsible for what. We could identify them. We knew how much the County Assembly had appropriated for their operations. We new the rationalisations behind their decision-making because, by law, they had to publish their plans in advance. This is the transparency part of the equation. And because we knew, our elected representatives could demand action if there were lapses. Or failing that, we could sue. This is the accountability part of the equation. And all go to satisfying another of Article 10's principles: the rule of law.

The NMS has an effective public communications strategy. It has effectively publicised its successes in paving city streets, repairing city equipment and making lofty-sounding promises such as building new hospital facilities or hiring healthcare workers. It has been so good at PR that few question any more whether or not the rationale behind NMS is founded on the quicksand of constitutional hooliganism. In my opinion, the only difference between Mike Sonko and NMS is that NMS covers itself with the veneer of martial discipline. Rub some of its soft skin off and the casual constitutional violations are plain to see, not the least being fidelity to the principles and values of governance of good governance, integrity, transparency and accountability - and the rule of law.

It could be that the NMS has fine Kenyans in it, law-abiding and honourable. But so long as they piss on Article 10 with the same reckless abandon as NMS's creators, there is absolutely no reason why we should give them a free pass simply because they are very good at laying coloured cabro in town. If there is a place to draw the constitutional implementation line in this cesspit, it is with fidelity to Article 10 for ALL State and public officers, their do-gooding notwithstanding. If you can't obey the Constitution, then you have no business in public service, army-fatigue PR notwithstanding.

Tuesday, November 03, 2020

Don't be an idiot

I didn't know how to say this so I'm just going to say it the way it's going to be said. If you are one of those Kenyans who think militarising public services is a good thing, you're an idiot.

The history of policing in Kenya is the history of policing Black Kenyans. The elite make the rules; the hoi polloi follow the rules. The intention has always been to ensure that the working classes do as they are told, take the pittance they are given, suffer in silence, and suffer dire consequences should they dare to organise and fight for better things. The history of policing has been that of the police force being used to keep the working Kenyan down by any means necessary. The force may have been renamed a service by constitutional fiat, and its officers may have shiny new bright-blue uniforms, but the policing instincts that have stood the elite in good stead have not changed one bit.

There is a sad story in the interwebs, about a man who was accosted by policemen for not wearing a mask, fled from them, was hit by a matatu and died, occasioning an armed response from the police officers' colleagues, some in plain clothes and others in uniform, to "contain the situation". This incident reaffirms my fears that policing in Kenya is not intended to keep ordinary Kenyans - Wanjiku - safe. It is intended to  keep Wanjiku in her place - a place of subservience, obedience, terror.

One of my colleagues in the Bar once asked me on Twitter what the alternative was to the militarisation of public services during this pandemic, and I bantered with him that we should, abolish both the National Police Service and the Kenya Defence Forces. He couldn't see how a "national emergency" could be handled in any way other than under force of arms. It terrifies me that Kenyans who have read the law don't have the capacity to empathise with what ordinary Kenyans are going through and, therefore, imagine different ways of addressing the present challenge without resorting to violent police action.

I suggested to him, at the very least, that the Ministry of Health should give each policeman fifty surgical masks t be given to every Kenyan who doesn't have one. If each of Kenya's 100,000 policemen was given fifty masks to distribute, and each actually distributed the masks to Kenyans who needed them, that would be 5 million masks distributed. Instead of violently accosting and detaining vulnerable Kenyans, the police would have contributed strongly to the Government's efforts to control and suppress the spread of the Covid-19 virus. Instead, from the moment the police were asked to "assist" in "enforcing Covid-19 regulations", they approached their responsibilities as they have been trained to approach all Government directives: with a mindset that Wanjiku is a threat to national security and stability and She must be coerced into submission even if it means Her death, injury - and widespread fear and panic.

I don't understand how anyone can imagine that it is a good thing to hand even more coercive powers to governmental entities is a good thing. Members of the uniformed and disciplined forces are not trained in the messy realities of political negotiation. Not that the political and administrative classes have done a bang up job, but the solution is not to abandon the hard work of building up civilian institutions. The solution, or at least part of it, is to identify the areas where civilian action has shown promise and to build them up and share best practices arising from them. Men and women who are trained to obey without question the orders of their commanders-in-chief and commanding officers are ill-suited to the slow slog of persuading a large civilian population to adopt risk-mitigating measures in the middle of a slowing economy, wide-spread unemployment, diminishing wealth and personal savings, and the terror of an unknown future.

So I'll say tis again. If you think militarising public services is a good thing, you are an idiot.

Wednesday, October 28, 2020

There shall be wailing and gnashing of teeth

If you are like me, and I sincerely hope that you are not, then you steer clear of Kenyan news media. Much of what passes as news and political commentary these days is barely-disguised propaganda from, in order of precedence, the president, his embattled deputy, the former prime minister or the satellites of vocal acolytes that carry water for the three principals. Every now and then, has-beens like the former vice presidents and some of the more energetic members of parliament will get a bit of airtime as will the doddery political flies made up of "civil society" windbags that swarm around the high table.

Therefore, it is almost certain that if it hadn't been for the violent rhetoric surrounding the release of the recent Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, the event would have passed me by without so much as a by-your-leave. But, sadly, I happened to come across the spirited whining of the former leader of the majority party in the senate and my spirit is disturbed.

Listening to the poor man, one gets the impression that the BBI, the catchall acronym for the implementation of the Taskforce report, is a matter of such grave national importance that presidential political ambitions shall be made and unmade on the outcome of the process. Our eponymous senator went to great lengths to highlight the crucial weaknesses in BBI (while also bitching piteously about how he and his fellow travellers had been locked out of the process). It never occurred to him to admit that the reason why there was a BBI in the first place is that he, his principals and their political party have done a great deal of constitutional sabotage that necessitates a messy political solution today.

Members of my benighted profession are taught to look at circumstances for what they are and not for what our clients wish them to be. I have witnessed one of my seniors throwing his weight behind some of the BBI report's steering committee's implementation report and, dear friend, my spirit is disturbed because if there's one thing that the BBI in its entirety is, it is that it is proof of constitutional hooliganism of epic proportions. Some may argue that the trigger for the latest round of BBI madness is the Chief Justice's advice to the president to dissolve parliament over parliament's refusal to implement the two-thirds gender rule. Some may say that after a year, give or take a pandemic or two, of the inexorable marginalisation of the deputy president and his acolytes, it is time to put him out of his misery. Still others might say that if there is a way of putting constitutional square pegs in antidemocratic round holes, the BBI is it with its proposals for statutory health commissions and constitutional police councils.

I am of a different opinion. From the moment the reds accepted, with open contempt, the outcome of the 2010 referendum, they have worked assiduously to hamstring everything the constitution stands for, from gender equity to the protection of the rights of arrested persons, fiscal rectitude to the principles of devolution. Parliamentary independence was, and continues to be, notable by its absence. Judicial independence has been the focus of determined violence that it is a wonder that just recently the Chief Justice inaugurated a new court house.

In my opinion, the BBI is a fig-leaf for something that Kenyans are afraid to come to terms wit: the political elite who speak for and about them hate the people. They hate them with a deep and abiding malevolence that is revealed in the policies and laws that are enforced, and the constitutional principles that are exsanguinated in the open, the way sacrificial lambs were exsanguinated in biblical myths. I have no faith that the successful implementation of the recommendations of the BBI Taskforce will re-acquaint Kenya's elite with the basic tenets of constitutional values. In fact, if (or when) the BBI recommendations are fully implemented, I predict that Kenyans will have great cause to regret their choices of elites. Like it is told in the Gospel according to St Matthew, there shall be wailing and gnashing of teeth.

Monday, October 12, 2020

Badi & Co. and the Bill of Rights

Paternalism does not sit well with Bills of Rights.

Nairobi's City Fathers, from the city's founding, have treated the "native" population with a paternalism that has invited rights' violating behaviour of such cruelty that it almost always comes as shock when one sees it in action. The City Fathers, and the central government that backs their anti-people plays, have always segregated the city - the wealthier suburbs and the Eastlands wasteland of untidiness in need of a firm guiding fatherly hand by Those Who Know Better.

This attitude, unsurprisingly, pervades city planning. It is the guiding light of the newly-minted roadsweeping company otherwise known as Nairobi Metropolitan Services, which has theoretically taken on the onerous task of physical planning, public health, public sanitation and public transport. Its 100-day anniversary was marked by the presidential flagging off of water bowsers and off-road ambulances. The president has "inspected" cabro works in the Nairobi Central Business District, giving the general in command top marks for his efforts. The general has attracted a positive press from the usual boosters - professional types that do not want to encounter mikokoteni, nduthists, matatus or hawkers in the streets of their beloved CBD. In their minds, it is a matter of time before martial discipline sorts out the city's issues and it can take its rightful place among the great cities of the world: London, New York, Paris, Munich, Milan and Singapore.

General Badi & Co., in keeping with the expectations of their boosters, have announced that, just like Rwanda's Kigali, one day in each month will be dedicated to mandatory roadsweeping by those in the city.  General Badi announced, portentously, that "this will come into law; it will be a must" to the ponderous praise of those who want government to be their daddy. A few things, though, escape their attention. Or, as I read it, they have completely ignored what is plain to see.

First, regardless of the legitimacy of the deed of transfer, General Badi was not elected to his position; he was appointed to it. He is accountable to his appointing authority. If he messes up, he can't be removed by the voters of the city. It is up to his appointing authority to decide whether or not he is doing a bang up job. So far, his appointing authority is happy with cabro works and branded water bowsers.

Second, a corollary to the first point. He is only accountable to his appointing authority for how he spends taxpayers' money. He need not present a budget for his operations to anyone other than his appointing authority. He is not subject to legislative oversight by the County Assembly. He does not have to lay his budget or his plans before the County Assembly. If he is summoned to attend before the relevant county assembly committees responsible for oversight of the areas under his charge, he can flip the committees the bird and suffer no adverse consequences. He can spend the billions under his charge without further reference to the county government.

Third, the opacity of the General's operations is a recipe for great corruption and if one argues that the Kenya Defence Forces is as white as the driven snow when it comes to graft, one has simply not been paying attention. The Air Force itself, where the general hails from, has yet to satisfactorily explain its dodgy purchase of jet fighters from Jordan that have never seen the great blue yonder. And now the man and his cohort are entering into public works contracts under unknown terms for unknown sums. If a billion or two evaporate into the ether, no one would know.

Fourth, the general is not trained to manage municipalities. Planning air war campaigns and implementing plans to revivify public health services are alike as chalk and cheese. The tendrils of industrial action emanating from the county's health workers will soon enough choke his grand plans for "21 new hospitals" simply because he does not seem to know what he wants to do to improve public health services.

The face of paternalism in Kenya has always been that of autocracy. Kenyans who don't see the light are to be beaten into submission. In Nairobi, the beating has always been meted out by the City Askaris. In order for General Badi to ensure that the residents of this city "turn out in large numbers" to sweep the roads, he will either have to persuade them that it is a good thing or he will have to force them to comply with his "it will be a must" way of thinking. If the latter, he will need to turn out the City Askaris, rungus and shields, to crack heads. Either way, that bit of the Bill of Rights about slavery, servitude and forced labour, is about to meet the General's new cohort. I will leave the irony of an Air Force general commanding City Askaris for others to muse about.